Disputes Quick Read – 18 / 63 观点
In Darren Warren v DSG Retail Limited earlier this year, the High Court struck out misuse of private information, breach of confidence and negligence claims, ruling that failure to provide adequate data security is not a positive act that can form the basis of such claims.
DSG Retail Limited was the victim of a malware hack between 2017 and 2018 on 5,930 point of sale terminals. These terminals stored customer data, which the hackers compromised. The ICO investigated the attack and decided that DSG, as data controller, breached the seventh data protection principle (DPP7) – ie it failed to take appropriate technical and organisational measures against unauthorised or unlawful processing of data. The ICO issued a monetary penalty, which is currently under appeal to the FTT.
Darren Warren was a victim of the hack and discovered that the hackers had stolen his personal information. This included his name, address, phone number, date of birth and email address. Mr Warren claimed damages of £5,000 for distress via claims for:
In response, DSG applied under CPR 24 and CPR 3.4(2) for summary judgment/strike out of the first three claims. DSG argued that these claims had no realistic prospect of success based on the facts and were untenable as a matter of law.
The court noted that, when ruling on strike out applications, it assumes the primary facts alleged are true. This means that the court should not strike out a claim unless it's certain that the statements of case disclose no reasonable grounds for bringing the claim.
Mr Warren had argued that:
Justice Saini disagreed and struck out the first three claims. He said that:
The court also struck out Mr Warren's negligence claim. Justice Saini couldn't see the logic of imposing a common law duty of care when a statutory regime (ie the Data Protection Act 1998) was already in place, through which DSG owed duties to Mr Warren as the data controller. Warren had only claimed "distress", but a state of anxiety produced by a negligent act or omission – but which falls short of a clinically recognisable psychiatric illness – is not enough damage to complete a tortious cause of action.
Only Mr Warren's claim for breach of the Data Protection Act 1998 remained, which the court stayed pending the FTT case's outcome.
To discuss the issues raised in this article in more detail, please reach out to a member of our Disputes & Investigation team.
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